Bates, John D., United States District Judge
The court rejected defendant’s argument that an award of expenses for plaintiffs’ motion to compel was improper, holding that the motion was “for an order compelling disclosure or discovery” and therefore properly governed by Rule 37(a). However, the court agreed that an award of one third of expenses for plaintiffs’ motion for sanctions was improper because the motion requested sanctions, not “an order compelling . . . discovery.” The award was nonetheless justified under Rule 37(b) because defendant’s failure to produce the emails constituted “fail[ure] to obey an order to provide or permit discovery” under Rule 37(b)(2)(A). Rule 37(b) sanctions were appropriate even though the spoliation occurred before the issuance of the discovery order because the inability to comply was “self-inflicted” by defendant’s failure to make any effort to retrieve the emails after its computer crashed.
However, the court reduced plaintiffs’ total award for its discovery motions, awarding only those particular expenses that the court held were reasonable and, in the case of the motion for sanctions, would not have been incurred but for defendant’s noncompliance. Although defendant objected to awarding plaintiffs the fee for a declaration by their witness because it was not part of the “attorney’s fees” compensable under Rule 37, the court nevertheless awarded the fee as part of plaintiffs’ “reasonable expenses” under Rule 37(b)(2)(C).
Finally, the court held that a permissive rather than a mandatory adverse inference instruction was appropriate and would remedy the harm suffered by plaintiffs. The “non-accidental destruction” that occurred when defendant made no steps to retrieve data after its computer crash did not amount to intentional misconduct, only gross negligence or recklessness. An instruction merely permitting a jury to draw an adverse inference was therefore appropriate given the slightly less culpable nature of defendant’s conduct.
v.
TEST MASTERS EDUCATIONAL SERVICES, INC., Defendant
Counsel
*377 Hassan A. Zavareei, Tycko & Zavareei LLP, Washington, DC, for Plaintiffs.Charles T. Jeremiah, Kevin D. Jewell, Chamberlain Hrdlicka White Williams & Martin, Houston, TX, David John Schenck, Office of the Attorney General, Austin, TX, for Defendant.
MEMORANDUM OPINION & ORDER
the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defense of the party that sought it.